Eleanore A. Cronk

The respondent sought costs on a substantial indemnity basis following the appellant's unsuccessful appeal.

The Court of Appeal awarded costs on a partial indemnity basis, fixed at $14,000.

The Court also adjusted the motion judge's costs award, reducing the hourly rate from $350 to $225, because the respondent's counsel had a special fee arrangement with the client that was not disclosed to the motion judge.

The Court noted that counsel operating under a special fee arrangement must disclose it, and costs cannot exceed the amounts actually charged to the client.

The appellant tenant sought to renew a cottage lease with the respondent municipality.

The municipality argued the renewal clause was void for uncertainty regarding the duration of the term, and that it lacked the power to enter the renewal without Ontario Municipal Board approval.

The application judge found the renewal clause void for uncertainty.

The Court of Appeal reversed, holding that the duration of the renewal term could be ascertained from the lease's express terms.

The Court also held that the municipality was exercising its proprietary powers, not divesting legislative powers, and that OMB approval was not required because no costs were to be raised in a subsequent year.

The accused was charged with sexual assault.

After discharging his counsel, he sought a physical copy of the complainant's videotaped statement.

The Crown refused to provide the physical tape but offered supervised viewing at the Crown's office.

The accused was convicted at trial.

On appeal, the summary conviction appeal court granted a stay of proceedings, finding the Crown's restriction on access unjustified.

The Crown appealed.

The Court of Appeal allowed the appeal, holding that the Crown's disclosure obligations to an unrepresented accused in sensitive cases are satisfied by providing supervised access to the videotape.

The conviction was restored and the stay of proceedings was set aside.

The appellants appealed an order dismissing their motion to set aside a previous consent order and seeking damages arising from an interim injunction.

The Court of Appeal upheld the motion judge's decision, finding that the doctrine of res judicata barred the request to set aside the order because the relief could and should have been sought in an earlier motion.

Furthermore, the court agreed that the earlier consent order, which dissolved the injunction without conditions, barred the appellants from subsequently claiming damages.

The appellants appealed an order dismissing their proposed counterclaim for abuse of process.

The appellants alleged that the respondents' letter of complaint to the I.D.A. was sent for the improper purpose of extorting a settlement in a civil claim.

The Court of Appeal dismissed the appeal, finding that the proposed counterclaim failed to plead facts of a definite act or threat in furtherance of the illegitimate purpose, which is a required element of the tort of abuse of process.

The appellant, a senior manager, was convicted of fraud and attempted fraud for engaging his girlfriend to provide recruitment services to his company without authorization.

He appealed his convictions and his sentence of 90 days' intermittent incarceration and a $20,000 fine.

The Court of Appeal dismissed the conviction appeal, finding ample evidence of a dishonest act and deprivation, and rejecting the defence of authorization.

The sentence appeal was also dismissed, with the court noting the sentence was merciful given the appellant's breach of trust.

The appellant bank appealed a trial judgment holding it liable for the unauthorized transfer of $4 million of the respondent's funds.

The appellant argued the trial judge erred by relying on hearsay evidence to reject its defences of acquiescence, ratification, and contributory negligence, by failing to draw an adverse inference, and by not reducing damages.

The Court of Appeal dismissed the appeal, finding the out-of-court statements were properly admitted to show the respondent's state of mind, not for their truth.

The court also upheld the trial judge's findings on the adverse inference and damages.

The appellant appealed convictions for sexual assault and sexual interference arising from historical allegations of abuse by a child complainant, and also sought leave to appeal sentence.

The Court of Appeal held that, in the particular circumstances of the case, the jury's questions about credibility in the absence of tangible evidence and the meaning of reasonable doubt required a renewed W.(D.) instruction during recharge.

The failure to repeat that instruction created a risk that the jury had lost sight of the burden of proof and the bases on which it was required to acquit.

Although the court rejected the argument that the guilty verdicts were unreasonable, it allowed the conviction appeals, set aside the convictions, and ordered a new trial.

The appellants appealed a summary judgment granted in favour of the respondent Bank.

The Court of Appeal found no evidence of bias by the motion judge and concluded that the appellants received a fair hearing.

On the merits, the Court agreed there was no genuine issue for trial, as the Bank did not take possession of the property and acted in a commercially reasonable fashion when enforcing its security to collect the debt.

The appeal was dismissed with costs.

The appellant appealed the dispositions of the Ontario Review Board and the verdict of unfit to stand trial made by the trial judge.

The Crown conceded that the fitness hearing should have been conducted by a judge and jury under s. 672.26 of the Criminal Code.

The Court of Appeal set aside the verdict of unfit to stand trial, declaring the proceeding a nullity, and referred the matter back to the trial court for a fitness hearing before a judge and jury.

The Ontario Review Board's determination was also set aside.

The appellant was convicted of manslaughter in the stabbing death of a frail, vulnerable friend and sentenced to 14 years' imprisonment.

On appeal, the Court of Appeal found the trial judge erred in principle by denying two-for-one credit for pre-trial custody based on the appellant's change of counsel, and by holding that provocation could not mitigate the sentence.

The Court held the appropriate range was 8 to 12 years due to numerous aggravating factors.

Factoring in proper pre-trial custody credit and provocation, the sentence was reduced to 9 years' imprisonment.

The appellant appealed an order dismissing an application to remove the respondent as executrix and trustee of an estate due to an alleged conflict of interest.

The Court of Appeal upheld the applications judge's finding that there was no sufficient conflict, noting the executrix was the only creditor in her capacity as residual beneficiary.

The appeal was dismissed with costs.

The appellant husband appealed the trial judge's equalization assessment and award of pre-judgment interest.

The Court of Appeal found no basis to interfere with the trial judge's factual findings, noting the trial judge's adverse credibility findings against the appellant.

The appeal was dismissed, and the cross-appeal was dismissed as abandoned.

Costs of the appeal were awarded to the respondent wife in the amount of $6,500 on a partial indemnity basis.

The appellant appealed the dismissal of its claim to recover damages from the respondent lawyer for amounts agreed to be paid to lien claimants in a prior consent judgment.

The appellant argued the respondent was estopped by conduct from contesting the validity of the lien claims and sought the return of a $10,000 retainer.

The Court of Appeal dismissed the appeal, finding the appellant failed to establish the necessary representation and reliance for estoppel, and had no valid claim to the holdback from which the retainer was paid.

In an addendum to an earlier decision, the Court of Appeal for Ontario awarded costs of $3,000 to the intervenor, payable by the appellant.

A cross-motion against the intervenor was dismissed as abandoned without costs.

The appellant insurer appealed an order dismissing its motion for summary judgment to dismiss a third-party claim for indemnification and a declaration of a duty to defend.

The Court of Appeal upheld the motion judge's finding that the insurance coverage issues were not ripe for determination because the 'Completed Operations Hazard' clause was ambiguous and extrinsic evidence might be required.

The Court also upheld the declaration that the insurer had a duty to defend, as the claim was not clearly excluded from coverage.

TransCanada Pipelines Limited sued Potter Station Power Limited Partnership for damages to its compressor station caused by land subsidence, relying on an indemnity provision in their agreement.

Potter Power's insurer, Commonwealth Insurance Company, brought a summary judgment motion arguing the indemnity only covered third-party claims, not first-party losses.

The motion judge dismissed the motion, finding the indemnity language covered direct damages.

On appeal, Commonwealth argued the judge failed to apply contra proferentem and failed to find the indemnity ambiguous.

The Court of Appeal dismissed the appeal, holding that the indemnity was unambiguous and clearly extended to direct damages suffered by TransCanada, making contra proferentem inapplicable.

The appellants, operators of a group home, appealed a civil jury verdict that found them 80% liable and the Children's Aid Society 20% liable for severe frostbite injuries suffered by a developmentally challenged student who went absent without leave from his high school.

The jury found the school board 0% liable.

The Court of Appeal dismissed the appeal, holding that the jury's finding of no negligence by the school board was supported by the evidence, particularly the appellants' failure to communicate prior runaway incidents to the school.

The court found no palpable and overriding error to justify interfering with the jury's apportionment of liability.

The corporate appellants appealed their convictions and sentence for offences related to a scheme selling shares of tickets in a Spanish lottery to American consumers.

The trial judge convicted them under sections 206(1) and 202(1) of the Criminal Code, entering conditional stays on all but one count based on the Kienapple principle, and imposed a $100,000 fine.

On appeal, the appellants raised issues regarding the requirement of an additional element of chance, acting as agents for buyers, the definition of betting or wagering, and the exemption under section 207(1)(h).

The Court of Appeal found no error in the trial judge's rejection of these arguments and upheld both the convictions and the sentence.

The appellant was convicted of aggravated assault and discharging a firearm with intent to wound after shooting the complainant in the neck.

He appealed his convictions, arguing the trial judge failed to give a limiting instruction on his post-offence conduct and failed to properly instruct the jury on the defence of accident.

He also appealed his 8-year sentence.

The Court of Appeal dismissed the conviction appeal, finding the post-offence conduct was relevant to intent and the jury instructions were adequate given the lack of evidence supporting an accident.

The sentence appeal was also dismissed as the sentence fell within the acceptable range.